This week, the Justice Department filed a lawsuit targeting an impending near-total abortion ban in the state of Idaho that’s set to take effect August 25.
The department went after the looming restrictions over the impact they threaten to have on the provision of emergency medical services. In short, a press release from the department outlined how defenses for medical personnel potentially targeted by prosecutors for providing an abortion included prior reporting of cases of rape or incest, in addition to a threat to the pregnant person’s life. However, there was no opportunity for targeted Idaho providers to use the defense of a threat to the pregnant person’s health, despite the fact there are rights established by federal law to certain emergency healthcare services well before the point of what would essentially be a near-death experience.
The Justice Department is pursuing a court judgment that the Idaho abortion ban “conflicts with, and is preempted by, the Emergency Medical Treatment and Labor Act (EMTALA) in situations where an abortion is necessary stabilizing treatment for an emergency medical condition,” the department said. “The United States also seeks an order permanently enjoining the Idaho law to the extent it conflicts with EMTALA,” the Justice Department press release outlined. In other words, it sounds as though the department action, if successful, wouldn’t secure the complete rollback of the Idaho restrictions, but at this point, the department clearly has substantially less on which to found any challenges to abortion restrictions, so that potentially limited impact no doubt simply reflects the realities of proceeding without Roe still in place. The law governing emergency medical care cited by the Justice Department regulates hospitals that receive federal Medicare funds.
EMTALA demands that such hospitals “provide necessary stabilizing treatment to patients who arrive at their emergency departments while experiencing a medical emergency,” per the department. The medical emergencies in which necessary stabilizing treatment must be provided extend significantly beyond those in which a patient is close to death. “The statute defines necessary stabilizing treatment to include all treatment needed to ensure that a patient will not have her health placed in serious jeopardy, have her bodily functions seriously impaired, or suffer serious dysfunction of any bodily organ or part,” federal authorities said. With the upcoming Idaho restrictions in place, medical providers targeted for performing an abortion can be criminally prosecuted even if the situation in which they carried one out would ultimately be protected, meaning the initially brought case would turn out in their favor without a conviction and penalties.
Other federal action targeting new abortion restrictions could be forthcoming; the Idaho case is connected to a Reproductive Rights Task Force at the Justice Department. “On the day Roe and Casey were overturned, we promised that the Justice Department would work tirelessly to protect and advance reproductive freedom,” Attorney General Merrick Garland stated. “That is what we are doing, and that is what we will continue to do. We will use every tool at our disposal to ensure that pregnant women get the emergency medical treatment to which they are entitled under federal law. And we will closely scrutinize state abortion laws to ensure that they comply with federal law.”